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Missing Man Looms Large in Murder Trial

NEW HAVEN — He is the missing man at the Cheshire triple-murder trial. Yet his presence is almost always felt.

Joshua Komisarjevsky, arrested with Steven J. Hayes outside the Cheshire, Conn., home of the Petit family the day of the triple murder there in 2007, is to be tried later for the crimes. Imprisoned, he is not in the windowless courtroom here where Mr. Hayes’s trial is playing out.

But for the last three weeks at Mr. Hayes’s trial, the absent co-defendant has been the subject as much as he has; that seems certain to continue on Friday during closing statements in the case against Mr. Hayes. The acts of which Mr. Komisarjevsky are accused are among the most startling in a case already filled with gruesome, hard-to-fathom acts of violence against defenseless victims.

It was Mr. Komisarjevsky, according to the testimony, who went into the house first, found a Louisville Slugger bat and used it to beat the sleeping father of the family, Dr. William A. Petit Jr.

It was Mr. Komisarjevsky, forensic evidence showed, who sexually assaulted Michaela Petit, 11, and photographed her with his cellphone. Then, according to an account by Mr. Hayes, Mr. Komisarjevsky tried to e-mail those photographs to his friends while the home-invasion horrors were still under way.

And Mr. Komisarjevsky, defense lawyers suggested, was the one who poured bleach and then gasoline on Michaela, who was tied to her bed, to try to blot out the record of what he had done. The bat was found in Michaela’s room after the arson fire that killed her and her sister, Hayley, who was 17.

There has been plenty of evidence in the prosecution’s capital case against Mr. Hayes, who is 47, including his own admission that he raped and then killed the girls’ mother, Jennifer Hawke-Petit. He bought gasoline that morning. He bought the BB gun that looked like a real pistol the intruders would use to frighten their victims, he told a police officer.

Each of the defendants has asserted from the start that the other was more responsible for what happened. Both face the possibility of the death penalty.

But in the courtroom it has been obvious that it was also a strategy of Mr. Hayes’s lawyers, Thomas J. Ullmann and Patrick Culligan, to try to turn the trial of Mr. Hayes into a trial of sorts of the absent Mr. Komisarjevsky.

“The defendant is trying to make it appear that Komisarjevsky is the moving force in this event,” Gary Nicholson, one of the prosecutors, said during a legal argument this week.

The missing man has been described many times. He was driving the Petits’ stolen Chrysler van when he crashed it into a police roadblock. He was the smaller of the two. He was wearing work boots, Carhartt-brand carpenter’s pants and, spookily, latex gloves.

The jurors have not been told that he was, though 18 years Mr. Hayes’s junior in age, at least his equal in criminal history. They have not been told of Mr. Komisarjevsky’s long record of burglaries, sometimes with night vision goggles.

Only one of the two intruders did the talking, Dr. Petit testified. The other one had the BB gun that looked like the real thing. It was Mr. Hayes, the jurors were told, who had the gun in his belt when they were arrested. Which would make it Mr. Komisarjevsky whom Dr. Petit described suddenly adopting a sinister tone as he shouted down to the basement in the last chaotic minutes of the crime that “it’s all going to be over in a couple of minutes.”

Police officers described watching the Petit home as the two intruders ran out a side door in a last-minute escape attempt. Mr. Komisarjevsky was in front, they said, with Mr. Hayes trailing behind and slipping on the wet grass as he tried to keep up.

Putting Mr. Komisarjevsky figuratively on trial, lawyers with experience in capital cases say, is unlikely to have much effect in this first phase of Mr. Hayes’s trial to determine whether he is to be convicted of the crime. But it is a common defense strategy to plant seeds for a potential second phase of the trial that would determine whether he will be sentenced to death.

If there is a second phase, the jurors will have already heard Mr. Hayes’s version, however credible, that the crime would not have occurred without Mr. Komisarjevsky. While Mr. Hayes was out of the house, his lawyer Mr. Ullmann told the jurors, Mr. Komisarjevsky’s assault of Michaela “changed the scenario.”

Though he has no role in Mr. Hayes’s trial, Mr. Komisarjevsky’s lawyer, Jeremiah Donovan, has been in court monitoring the shadow trial of his client. One day last week, he let it be known that he wanted to talk to reporters, though there is a court order directing the lawyers and defendants not to comment publicly.

Mr. Donovan said he wanted to correct a “misimpression” that Mr. Komisarjevsky had anally raped the 11-year-old Michaela. Instead, he said, Mr. Komisarjevsky had confessed that he “ejaculated upon” the younger Petit daughter. He said he knew this was “small solace” to the Petit family.

The remarks were widely reported in Connecticut. Three days later, a Superior Court judge, Roland D. Fasano, directed that Mr. Donovan appear in court on Oct. 19 to respond to the assertion that his comments were “in flagrant violation” of the no-comment order.

A version of this article appears in print on October 1, 2010, on Page A19 of the New York edition with the headline: In Murder Trial, Focus on a Missing Man. Order Reprints|Today's Paper|Subscribe